Citation Nr: 0505856
Decision Date: 03/02/05 Archive Date: 03/15/05
DOCKET NO. 93-23 770 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Whether the appellant should be recognized as the veteran's
surviving spouse for the purpose of establishing her
entitlement to benefits from the Department of Veterans
Affairs.
REPRESENTATION
Appellant represented by: Glenn R. Bergmann, Attorney-
at-Law
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Counsel
INTRODUCTION
The veteran had active military service from March 1961 to
September 1967. He died in November 1987.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Chicago, Illinois.
In a July 1995 decision, the Board determined that the
appellant was not entitled to recognition as the veteran's
surviving spouse for the purpose of receiving VA benefits.
She appealed to the United States Court of Appeals for
Veterans Claims (Court), and in a May 1997 Order, the Court
granted a Joint Motion for Remand, vacating the July 1995
Board decision and remanding the case for additional
development. The Board remanded the case in March 1998, and
on return of the case from the RO again denied the claim in a
November 2000 decision. The appellant appealed the November
2000 decision to the Court.
In a May 2001 Order, the Court granted a motion filed by VA
to remand the case to the Board. In a May 2002 decision the
Board again denied the appellant's claim. She appealed the
May 2002 Board decision to the Court, and the Court in a
March 2003 Order granted a Joint Motion to Remand filed by
the parties, vacating the May 2002 decision and remanding the
case to the Board. The Board thereafter remanded the case to
the RO in December 2003. The case was most recently returned
to the Board in December 2004.
FINDINGS OF FACT
1. The veteran and appellant were married in January 1963 in
the state of Illinois.
2. The veteran and appellant were divorced as of January [redacted],
1975, in the state of Michigan; they did not thereafter
remarry or live as husband and wife.
3. At the time of the veteran's death in November 1987, his
legal state of residence was Michigan.
4. The veteran's death certificate records that he was
divorced at the time of his death; this information was
provided by his daughter.
CONCLUSION OF LAW
The requirements for recognition of the appellant as the
veteran's surviving spouse for the purpose of establishing
entitlement to VA benefits have not been met. 38 U.S.C.A. §§
101(3), 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.1(j),
3.50, 3.52, 3.53, 3.159, 3.205, 3.206 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 redefined VA's
duty to assist a claimant in the development of a claim.
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, VA must
notify the claimant of the information and evidence not of
record that is necessary to substantiate a claim, which
information and evidence that VA will seek to provide, which
information and evidence the claimant is expected to provide,
and to ask for any evidence in the claimant's possession that
pertains to a claim.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court
held, in part, that VCAA notice, as required by 38 U.S.C.
§ 5103(a), must be provided to a claimant before the initial
unfavorable adjudication by the RO on a claim for VA
benefits, even if the claim and initial unfavorable
adjudication occurred prior to the effective date of the
VCAA.
The appellant filed a claim for Dependency and Indemnity
Compensation benefits in November 1991. The RO adjudicated
the claim years before the VCAA was enacted. The decision in
question denied her claim based on the determination that she
was not the surviving spouse of the veteran, and therefore
could not be entitled to the benefits sought. The decision
specifically advised her of VA's definition of "surviving
spouse" and "marriage," and explained the exceptions for
nevertheless establishing eligibility for recognition as a
surviving spouse. In an April 1992 correspondence, the RO
again explained the above. In other correspondences, VA
requested the appellant to submit evidence showing that she
had no knowledge of a legal impediment to her "marriage" to
the veteran, or evidence documenting continuous cohabitation
with the veteran and showing that she and the veteran had
held themselves out as husband and wife. The RO suggested
the submission of documents such as tax returns, bank
statements or contracts tending to show that they considered
themselves married.
The April 2001 motion by the Secretary to remand the case to
the Board (granted in the May 2001 Order) requested that the
Board re-evaluate the appellant's claim under the duty to
notify and duty to assist provisions of the VCAA. Although
the May 2002 Board decision did discuss VA's compliance with
the VCAA, the February 2003 joint motion filed by the parties
concluded that the Board did not adequately explain how VA's
notification duties under the VCAA had been met.
Specifically, the joint motion determined that VA had not
adequately advised the appellant of what evidence she was
responsible for submitting and of what evidence VA was
responsible for obtaining on her behalf.
In accordance with instructions contained in the Board's
December 2003 remand, the RO in a May 2004 correspondence
advised the appellant that she needed to provide, or identify
and authorize VA to obtain, evidence that the judgment
granting the veteran a divorce from her had been vacated, or
evidence that she re-entered a marriage with the veteran
considered valid under the law of the place the marriage
occurred. In September 2004 correspondence, the RO again
advised her of the information and evidence necessary to
substantiate her claim, namely evidence that the judgment
granting the veteran a divorce from her was vacated, or that
they re-entered a valid marriage. She was specifically
informed that it was her responsibility, and hers alone, to
provide evidence of the above, but that VA would make
reasonable efforts to obtain relevant evidence such as public
records or court records if she desired. She was also
advised to contact VA if there was any other evidence she
believed might support her claim, and advised to submit any
pertinent evidence in her possession. Thereafter, her claim
was re-adjudicated, and a November 2004 supplemental
statement of the case was issued.
While the VCAA notice was issued out of sequence, the content
of the notices substantially complied with the specificity
requirements of Quartuccio v. Principi, 16 Vet. App. 183
(2002) and Charles v. Principi, 16 Vet. App. 370 (2002), as
well as the concerns voiced in the February 2003 Joint
Motion. At this point, the appellant has been advised on
several occasions since December 1991 as to what information
and evidence is necessary to substantiate her claim that she
was "married" to the veteran at the time of his death. She
was specifically advised that she is responsible for
obtaining evidence showing that the divorce decree obtained
by the veteran is invalid, or that she otherwise was married
to him at the time of his death. She was advised that VA
would help her obtain such evidence, and that she should
contact VA if she was unsure as to whether VA would assist
her in obtaining any particular evidence.
At this stage of the appeal, there is no further notice that
is needed to comply with the VCAA and the appellant is not
prejudiced by the out of sequence notice. The Board will
proceed with appellate review.
With respect to VA's duty to assist the appellant in
obtaining evidence in connection with her claim, the Board
points out that all relevant evidence identified by her, and
for which she authorized VA to obtain, is on file. The
record contains, inter alia, copies of the January 1963
marriage license and January 1975 divorce judgment of the
appellant and veteran, a police report for August 1969,
photographs submitted by the appellant, an anniversary card
from the deceased, and statements by the appellant, her
children, and a neighbor. She has not identified any
additional evidence not already on file. As there is
otherwise no outstanding evidence to obtain, the Board
concludes that the duty-to-assist provisions of the VCAA have
been complied with.
In sum, the facts relevant to this appeal have been properly
developed and there is no further action to be undertaken to
comply with the provisions of the VCAA or the implementing
regulations. Therefore, the appellant has not been
prejudiced as a result of the Board proceeding to the merits
of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94
(1993).
Factual background
On file is a copy of a marriage license showing that the
appellant and the veteran were married in January 1963 in
Illinois. In an August 1967 rating action, service
connection was granted and a 30 percent rating assigned for
aortic insufficiency. In a Veteran's Application for
Compensation or Pension received in September 1967, the
veteran reported that he was married to the appellant and had
three children, two of whom were in his custody. An October
1967 rating decision increased the evaluation assigned the
veteran's service connected disorder to 100 percent. In
March 1968 the evaluation was reduced to 60 percent, and in
October 1968 he was granted a total disability rating based
on individual unemployability due to service-connected
disability.
The records show that the veteran and the appellant were
receiving benefits from the Social Security Administration as
husband and wife since 1968. In a September 1968 statement
regarding his income and net worth, the veteran reported that
he was married to the appellant.
By 1971, the record shows that the veteran lived in Michigan,
and the appellant in Illinois. From at least January 1976
until his death, the veteran consistently reported to VA that
he lived at a particular address in Michigan, and various
records on file show that he worked at a job in Michigan in
1977, that he was attending school in Michigan in 1981, and
that he was employed by a Michigan branch of the Internal
Revenue Service in 1985 and 1986.
In a statement received around February 1971, the veteran
requested retroactive benefits for the addition of a
dependent. In a 1972 statement the appellant indicated that
she had left the veteran after he injured her twice. Around
that time she requested and received an apportioned share of
his compensation benefits for herself and her children.
In a May 1973 decision, the Board determined that the
appellant was not entitled to an additional apportionment of
the veteran's monthly compensation benefits. The Board noted
that she and the veteran were estranged and living apart.
In April 1975, the appellant submitted a request for an
increased apportionment for her and her two children. In the
request she took the opportunity to "inform [VA] that the
veteran [...] divorced me on January [redacted], 1975 and it appears
that he did not report this fact to [VA]." The record shows
that the RO thereafter notified the veteran that his monthly
payments would be reduced because of the change in dependents
as a result of the divorce. In December 1975, the appellant
provided information concerning her income and expenses and
again noted that the veteran had divorced her. In January
1976, the veteran, in detailing his income and expenses,
stated that "[t]he monthly amount my wife (sic) received
from [VA] you have listed."
In a Special Apportionment Decision dated in February 1976,
the RO noted that the expenses reported by the appellant
could not be considered in her apportionment request, because
she was divorced from the veteran. The record shows that she
thereafter received an apportioned share of the veteran's VA
benefits on behalf of his children in her custody.
A November 1981 Special Report of Training entry indicates
that the veteran planned on visiting Chicago to retrieve his
runaway son, and return to Benton Harbor, Michigan. A June
1985 VA Form 22-5490 completed by the veteran indicates that
his son was living with him in Michigan.
On file is a November 1985 hospital report from the Chicago
VA Medical Center which indicates that the veteran reported
he was divorced; that medical center had a Michigan address
for the veteran. The report of an October 1986 VA
examination conducted in Michigan also documents his marital
status as divorced.
The veteran died in November 1987 while visiting Indiana.
According to the death certificate issued by that state, he
was "divorced" at the time of his death, and was a resident
of Michigan. The source of this information was the
veteran's daughter.
In November 1987 the veteran's son signed an Application for
Burial Benefits, indicating that he used his own funds for
burial expenses.
On an application for Dependency and Indemnity Compensation
benefits submitted in November 1991, the appellant reported
that she had been married only once, to the veteran, that
their marriage was terminated in January 1975 in Michigan,
and that she had not remarried.
In numerous statements submitted in support of her claim, the
appellant argued that her marriage to the veteran was never
legally dissolved because an official divorce decree was
never obtained. In a statement received in March 1992, she
indicated that she was not present at the time the divorce
purportedly occurred, did not participate in the divorce, and
disagreed with certain findings noted in the divorce
judgment. She also explained that the veteran continued to
consider her his wife even after the "divorce," that she
lived with the deceased before, during and after the
"divorce" but periodically left him because he was abusive
and unfaithful, and that the deceased never referred to her
as his ex-wife around friends or family. She stated that she
and the veteran shared homes in Illinois and Michigan and
would visit each other. She also argued that the divorce
judgment itself was never enforceable because the veteran
refused to pay her the $1 he was ordered to pay in the
judgment, and that he assured her that as long as he refused
to pay her that $1, the divorce judgment would not take
effect.
In April 1993, the appellant submitted a copy of a letter
from a private Michigan attorney who apparently responded to
her request for information regarding the process for
obtaining a "No Fault" divorce in the state of Michigan.
In that letter, the attorney noted that because Michigan is a
"No Fault" state, the veteran filed for divorce, and a
divorce was granted on the basis of his petition and
testimony. The attorney opined that there was virtually
nothing the appellant could have done to stop the process,
that she could not force the veteran to live with her, and
that in his opinion, she had no defense to prevent the
divorce as they were living apart.
The May 1997 Joint Motion for Remand noted that the record
contained plausible evidence of a valid marriage between the
appellant and the veteran (namely, the January 1963 marriage
license). The parties to the joint motion pointed out that
the record on appeal did not contain a copy of the January
1975 divorce decree, and the parties further noted that VA
must request evidence addressing the question of whether the
appellant was aware or had knowledge of a "legal
impediment" to her "marriage" to the veteran at the time
of his death (namely, the purported divorce in January 1975).
Following the Board's remand, the RO contacted the appellant
and requested that she furnish particular evidence in support
of her claim. In 1998, she submitted a signed and sworn
affidavit that she was never notified, or had any knowledge,
of any divorce proceedings or informed that her marriage had
been dissolved; and that the veteran had held her out as his
wife in public even after 1975.
In September 1998, the RO obtained a copy of a Judgment of
Divorce entered in Michigan in January 1975. The Judgment
listed the veteran as the plaintiff and the appellant as
defendant, and noted that the veteran's complaint was taken
as confessed by the appellant. The judgment also ordered the
veteran to pay the appellant $1 to release her dower rights.
A dower right is a life estate in the lands of her husband to
which a wife is entitled upon his death. See generally,
Black's Law Dictionary 442 (5th Ed. 1979).
In October 1998, the appellant submitted another signed and
sworn affidavit repeating her assertions that she was never
notified of the Michigan divorce proceedings, and that she
never signed any documents or otherwise agreed to the
divorce. The appellant further swore that she had a
discussion with the veteran about the "alleged divorce,"
and that he affirmed to her then, and on later occasions,
that he considered her to be his spouse and that they were
not divorced. According to her, he explained that as long as
he did not pay her the $1 mentioned in the divorce decree,
the divorce would not be effective. She also indicated that
she and the veteran continued to have normal sexual relations
until his death, and that he introduced her as his wife in
public.
In a December 1998 report of contact, the RO contacted the
office of the Michigan attorney who wrote the correspondence
the appellant submitted in April 1993. His office clarified
that the attorney had no record of a divorce between the
appellant and the veteran, and that his letter should be read
more as an explanation as to how Michigan's "No Fault"
divorce laws operated.
The record reflects that the RO thereafter contacted the VA
District Counsel located in Illinois for an opinion as to the
validity of the divorce decree and whether it would be valid
and binding in the state of Illinois. In May 1999, the
District Counsel responded by noting that Illinois recognizes
the decrees of Michigan under the doctrine of full faith and
credit, and that if the decree is legal in Michigan, it would
be recognized as such in Illinois.
In statements received in November 1999, the two children of
the appellant and the veteran submitted statements to the
effect that their parents were married, and that the family
lived in both Michigan and Illinois, with Michigan
representing a vacation property. The son indicated that the
family was not traditional in the sense that his parents
sometimes lived apart. The daughter stated that her parents
held themselves out as husband and wife at public functions,
and she additionally indicated that the veteran was abusive
to the appellant.
In a November 1999 statement the appellant noted that the
state of Illinois had no record of the Michigan divorce
judgment ever being recorded. She also repeated her
assertion that the veteran repeatedly told her that they were
not divorced. She also stated that she "had no knowledge
with regards to 'common law marriages' in Illinois or
Michigan because [she] always considered [the veteran] to be
her husband and he always held [her] out as his wife." She
also indicated that she had never attempted to have the
divorce judgment set aside because she believed it to be
invalid. In further support of her claim, she submitted
photographs taken in the 1980s showing her with the veteran
and children; a certificate showing that no divorce record
was found in Illinois; a copy of an undated anniversary card
given to her by the veteran; a 1984 letter from a retail
store concerning a service contract, which is addressed to
the veteran but which includes in the salutation "Mr." or
"Mrs."; and a certificate from the President honoring the
memory of the deceased.
In February 2000, a VA Regional Counsel explained that he had
reviewed the January 1975 Judgment of Divorce and, assuming
it is a true copy, found that it comported with those issued
in like matters in Michigan. The Regional Counsel found no
reason to conclude that it was not a legal and binding order
in the state of Michigan.
In a July 2004 statement, Annola Higgins indicates that she
was a neighbor of the appellant and veteran for 31 years, and
that since 1972, the appellant and the veteran had always
held themselves out as married. She indicated that the
veteran would spend time at the family vacation house in
Michigan, but would return, and that the appellant would
sometimes visit the Michigan house as well.
In a sworn and signed statement dated in August 2004, the son
of the appellant and veteran explained that his father would
disappear for weeks at a time but would always return. He
indicated that his father was physically abusive toward his
mother throughout the years, and had participated in several
affairs. The son emphasized that they had always remained a
family.
In a sworn and signed statement dated in August 2004, the
veteran's daughter alleged that the veteran had girl friends,
and that he was abusive toward the appellant. She also
indicated that he would disappear for weeks.
Submitted by the appellant's representative in September 2004
is an arrest report for August 1969 indicating that the
veteran was arrested on a charge of battery; the appellant is
listed as the victim.
The representative argues that the appellant's current
statements regarding her marital status are credible, as it
was she who in 1975 first notified VA that she and the
veteran had divorced, and that she has been consistent in her
statements. He also argues that the appellant was unaware
that the January 1975 divorce judgment was an impediment to
her marriage because the veteran had assured her the divorce
decree was not effective until he paid her $1, because he
held her out as his wife after 1975, and because in the
January 1976 statement described previously, he referred to
her as his wife. He argues that the fact that Michigan,
Illinois and Indiana do not recognize common law marriages is
irrelevant, because non-recognition of a common law marriage
by a state constitutes a legal impediment to the marriage,
and thus the marriage may still be deemed valid for VA
purposes. He also suggests that the appellant cohabitated
continuously with the veteran for the purposes of 38 C.F.R.
§ 3.53, except for times when the deceased physically abused
her (and therefore that any separation was due to his
misconduct). He also suggests (without further explanation)
that any separations were temporary, by mutual consent, and
for the purposes of convenience, health, or business. The
representative lastly argues that the Michigan divorce
judgment was never properly served on the appellant or
registered in Illinois, and therefore is not enforceable in
Illinois.
Analysis
"Spouse" means a person of the opposite sex whose marriage
to the veteran meets the requirements of 38 C.F.R. § 3.1(j).
38 C.F.R. § 3.50(a).
Marriage means a marriage valid under the law of the place
where the parties resided at the time of marriage, or the law
of the place where the parties resided when the right to
benefits accrued. 38 C.F.R. § 3.1(j).
Marriage is established by one of the following types of
evidence: (1) Copy or abstract of the public record of
marriage, or a copy of the church record of marriage,
containing sufficient data to identify the parties, the date
and place of marriage, and the number of prior marriages if
shown on the official record. (2) Official report from
service department as to marriage which occurred while the
veteran was in service. (3) The affidavit of the clergyman
or magistrate who officiated. (4) The original certificate
of marriage, if VA is satisfied that it is genuine and free
from alteration. (5) The affidavits or certified statements
of two or more eyewitnesses to the ceremony. (6) In
jurisdictions where marriages other than by ceremony are
recognized the affidavits or certified statements of one or
both of the parties to the marriage, if living, setting forth
all of the facts and circumstances concerning the alleged
marriage, such as the agreement between the parties at the
beginning of their cohabitation, the period of cohabitation,
places and dates of residences, and whether children were
born as the result of the relationship. This evidence should
be supplemented by affidavits or certified statements from
two or more persons who know as the result of personal
observation the reputed relationship which existed between
the parties to the alleged marriage including the periods of
cohabitation, places of residences, whether the parties held
themselves out as married, and whether they were generally
accepted as such in the communities in which they lived. (7)
Any other secondary evidence which reasonably supports a
belief by the Adjudicating activity that a valid marriage
actually occurred. 38 C.F.R. § 3.205(a).
In the absence of conflicting information, proof of marriage
which meets the requirements of 38 C.F.R. § 3.205(a) together
with the claimant's certified statement concerning the date,
place and circumstances of dissolution of any prior marriage
may be accepted as establishing a valid marriage, provided
that such facts, if they were to be corroborated by record
evidence, would warrant acceptance of the marriage as valid.
38 C.F.R. § 3.205(b).
Where a surviving spouse has submitted proof of marriage in
accordance with 38 C.F.R. § 3.205(a) and also meets the
requirements of 38 C.F.R. § 3.52, the claimant's signed
statement that she had no knowledge of an impediment to the
marriage to the veteran will be accepted, in the absence of
information to the contrary, as proof of that fact.
38 C.F.R. § 3.205(c).
"Surviving spouse" means a person of the opposite sex whose
marriage to the veteran meets the requirements of 38 C.F.R. §
3.1(j) and who was the spouse of the veteran at the time of
the veteran's death and: (1) Who lived with the veteran
continuously from the date of marriage to the date of the
veteran's death except where there was a separation which was
due to the misconduct of, or procured by, the veteran without
the fault of the spouse; and (2) Except as provided in
38 C.F.R. § 3.55, has not remarried or has not since the
death of the veteran and after September 19, 1962, lived with
another person of the opposite sex and held himself or
herself out openly to the public to be the spouse of such
other person. 38 C.F.R. § 3.50(b).
Where an attempted marriage is invalid by reason of legal
impediment, the marriage will nevertheless be deemed valid if
(a) the marriage occurred one year or more before the veteran
died; and (b) the claimant entered into the marriage without
knowledge of the impediment; and (c) the claimant cohabited
with the veteran continuously from the date of the attempted
marriage until his death; and (d) no claim has been filed by
a legal surviving spouse who has been found entitled to
gratuitous death benefits. 38 U.S.C.A. § 103(a) (West 2002);
38 C.F.R. § 3.52 (2004).
The requirement that there must be continuous cohabitation
from the date of marriage to the date of death of the veteran
will be considered as having been met when the evidence shows
that any separation was due to the misconduct of, or procured
by, the veteran without the fault of the surviving spouse.
Temporary separations, which ordinarily occur, including
those caused for the time being through fault of either
party, will not break the continuity of the cohabitation.
38 C.F.R. § 3.53(a).
The statement of the surviving spouse as to the reason for
the separation will be accepted in the absence of
contradictory information. If the evidence establishes that
the separation was by mutual consent and that the parties
lived apart for purposes of convenience, health, business, or
any other reason, which did not show intent on the part of
the surviving spouse to desert the veteran, the continuity of
the cohabitation will not be considered as having been
broken. State laws will not control in determining questions
of desertion; however, due weight will be given to findings
of fact in court decisions made during the life of the
veteran on issues subsequently involved in the application of
this section. 38 C.F.R. § 3.53(b).
The validity of a divorce decree regular on its face, will be
questioned by VA only when such validity is put in issue by a
party thereto or a person whose interest in a claim for VA
benefits would be affected thereby. In cases where
recognition of the decree is thus brought into question: (a)
Where the issue is whether the veteran is single or married
(dissolution of a subsisting marriage), there must be a bona
fide domicile in addition to the standards of the granting
jurisdiction respecting validity of divorce; (b) Where the
issue is the validity of marriage to a veteran following a
divorce, the matter of recognition of the divorce by VA
(including any question of bona fide domicile) will be
determined according to the laws of the jurisdictions
specified in 38 C.F.R. § 3.1(j); (c) Where a foreign divorce
has been granted the residents of a State whose laws consider
such decrees to be valid, it will thereafter be considered as
valid under the laws of the jurisdictions specified in 38
C.F.R. § 3.1(j) in the absence of a determination to the
contrary by a court of last resort in those jurisdictions.
38 C.F.R. § 3.206.
The record shows that the appellant and the veteran were
married in January 1963, and that in January 1975 the
deceased obtained a divorce from the appellant. Although the
appellant contends that the divorce judgment is invalid
because she never received notice of the proceedings and
because of certain purported defects in the judgment,
Michigan law provides that notice may be by publication.
MICH COMP. LAWS § 552.9a. Further, the signing judge
specifically took the veteran's complaints as confessed by
the appellant (implying that the judge was satisfied that the
appellant had been properly notified but had not responded).
Finally, there is otherwise nothing in the divorce judgment
to suggest that it is invalid or not a true copy. VA's
Regional Counsel has examined the document and found nothing
to suggest that it is other than a valid judgment of divorce
between the appellant and the veteran.
Although the appellant also argues that the judgment is
invalid because it was never registered in Illinois, the
Board finds this argument unpersuasive, as the failure of the
veteran to register the divorce judgment in Illinois, or in
any other state, would not affect the validity of the
divorce, but at most the enforceability of certain
obligations imposed on the parties. Moreover, VA's District
Counsel examined the divorce judgment and correctly
determined that Illinois would be Constitutionally obligated
to recognize the divorce judgment had the veteran registered
it. Accordingly, the January 1975 divorce decree was a legal
dissolution of the marriage. It is controlling as to the
question of the appellant's marital status at the time of the
veteran's death. The Board notes in passing that despite her
arguments concerning the validity of the divorce decree,
there is no indication that the appellant, or her
representative, has ever sought to have the state of Michigan
vacate the judgment.
The appellant also argues that her marriage to the veteran
was never dissolved because he did not pay her the $1
mentioned in the divorce judgment. Even assuming the veteran
did not pay her the $1, the divorce judgment was not a mere
contract, but a judicial determination that the marriage of
the deceased and the appellant was dissolved. Other than the
appellant's own statement, there is no evidence whatsoever
that the veteran failed to pay the de minimus amount ordered
paid, and the Board does not find her statement credible,
particularly in light of her unambiguous April and December
1975 statements to VA that she was divorced. Indeed, using
the appellant's own logic, if the veteran had failed to pay
the $1.00 ordered by the Court then she submitted fraudulent
statements to VA in 1975.
Lastly, while the appellant contends that the veteran himself
did not believe the divorce judgment ever took effect, the
fact remains that he did undergo a process culminating in the
issuance of a divorce judgment pursuant to Michigan's
exercise of its Constitutionally recognized power to issue
such decrees. See U.S. CONST. Amend. X.
In short, the Board finds, the arguments of the appellant and
her representative to the contrary notwithstanding, that the
January 1975 divorce judgment is valid, and that the
appellant's January 1963 marriage to the veteran ended on
that date.
The Board acknowledges that the representative has submitted
an arrest report showing that the deceased was accused of
battering the appellant in 1969, and that the appellant and
her children have attested to the veteran's physical abuse of
the appellant. To the extent that the appellant is arguing
that the veteran's misconduct resulted in their separation
prior to January 1975, the Board points out that the reason
for any such separation was rendered irrelevant by the
January 1975 divorce decree.
The appellant next maintains that she was married to the
veteran after the January 1975 divorce judgment, contending
that he told her the divorce judgment was not effective, and
that he continued to hold her out as his wife. She argues
that she was unaware that there was a legal impediment to her
marriage, namely the actual validity of the divorce judgment.
Her representative has essentially argued in the alternative
that the appellant's relationship with the veteran after
January 1975 constituted an attempt at a common law marriage,
for which there was a legal impediment of which she
purportedly was unaware (namely that common law marriages are
not recognized in Illinois, Indiana or Michigan).
By 1973, the appellant was in receipt of an apportioned share
of the veteran's benefits which included payments for herself
as a dependent of the veteran. In April 1975 she notified VA
that the veteran had divorced her, repeating this as her
understanding in December 1975. While her representative
argues that VA continued to pay the appellant an apportioned
share of the veteran's benefits even after the January 1975
divorce, the record clearly shows that she was removed as a
dependent by January 1976, and that any apportionment she
received since that time was based solely on the status of
the veteran's children as dependents. On her November 1991
application for benefits, the appellant again indicated that
her marriage to the veteran was terminated in January 1975.
Although she now contends that she was unaware that the
January 1975 divorce judgment served to dissolve her marriage
to the veteran, the Board finds her recent statements to this
effect to be of marginal probative value when compared to her
consistent statements up to November 1991 evincing clear
awareness that the veteran had divorced her.
Moreover, the record shows that she did not seek to add
herself as the veteran's dependent after VA concluded that
she was no longer the deceased's spouse. Although her
representative argues that her contentions since 1975 have
been consistent, the Board points out that the specific
statements by the appellant proffered to demonstrate this
consistency only include her statements made after the
December 1991 denial of the instant claim. Accordingly, the
Board finds that her earlier statements demonstrating
awareness that she was divorced from the veteran are of far
greater probative value than her current statements,
particularly because the earlier statements were made when
she could have expected to receive increased benefits as the
spouse of the veteran.
The Board consequently concludes that the appellant was well
aware of the legal impediment that the divorce judgment
presented to her marriage of the veteran.
With respect to whether the appellant and the veteran
nevertheless attempted to enter into a common law marriage,
the Board first notes that a couple may not enter into a
common law marriage in Illinois, Indiana, or Michigan. In
Illinois, "[c]ommon law marriages contracted in this State
after June 30, 1905 are invalid." 750 ILL. COMP STAT. ANN.
5/214. Similarly, in Indiana, "[a] marriage is void if the
marriage is a common law marriage that was entered into after
January 1, 1958." IND. CODE ANN. § 31-11-8-5. In Michigan,
the "consent (of the parties) alone is not enough to
effectuate a legal marriage on and after January 1, 1957.
Consent shall be followed by obtaining a license..." MICH.
COMP. LAWS ANN. § 551.2.
VA's Office of General Counsel, in VAGCPRECOP 58-91, 56
Fed.Reg. 50151 (1991), concluded that the requirement of a
marriage ceremony by a jurisdiction which does not recognize
common-law marriage constitutes a "legal impediment" to
such a marriage for the purpose of 38 U.S.C.A. § 103(a). See
Colon v. Brown, 9 Vet. App. 104 (1996); Sandoval v. Brown, 7
Vet. App. 7 (1994). In this case, however, the appellant
previously legally married the veteran in Illinois, lived in
Illinois for a number of years before and after January 1975,
and continues to live in that state. The Board finds the
appellant knew that in order for her to be remarried to the
veteran she needed to formally remarry him under Illinois
state law. She was consequently aware of the legal
impediment to her "marriage" to the veteran, in the form of
a prohibition on common law marriages in Illinois.
The Board has nevertheless considered her statements and
evidence that she and the veteran held themselves out as
husband and wife after January 1975. She maintains that they
lived together in Illinois except during times when they
would separate due to his physical abuse. He purportedly
would leave Illinois and stay at the vacation home in
Michigan during those times. She has submitted statements
from her children and from a neighbor to bolster her claim.
Turning first to the statements of her children, the Board
notes that while the daughter now claims that she was unaware
that the veteran and appellant were divorced, this same
daughter informed the state of Indiana that the deceased was
divorced when he died. Moreover, while his son indicated
that they remained a family, he also noted that the veteran
did not live with them consistently. In addition, while the
daughter described the veteran's Michigan residence as no
more than a vacation home, the record shows that the
residence was in fact the primary residence of the veteran,
and the Board points out that since at least 1976, the
veteran reported to VA and to VA medical facilities that he
lived at the Michigan address. Moreover, the daughter
herself advised the state of Indiana that the deceased lived
in Michigan, not Illinois. The record also shows that while
living in Michigan the veteran was employed on at least two
occasions. That activity, as well as the veteran's
consistent reporting of a Michigan mailing address,
demonstrate that the veteran was domiciled in Michigan, and
that the Michigan address was not a "vacation home." This
is particularly evident as the veteran never suggested to VA
since 1975 that he was working or attending school in
Illinois.
In short, the Board finds the recent statements of the
veteran's daughter suggesting that she believed from her
parent's actions that they were married to be contradicted
by her earlier statements to the state of Indiana. The
statements of the veteran's son further suggest that rather
than behaving as married, his parents simply interacted, as
many divorced parents do, in visiting their children and
continuing to remain active in their lives. With respect to
the neighbor's statement, the probative value of the
statement is undermined by the evidence showing that the
veteran was domiciled in Michigan, and not Illinois, and
suggesting that the veteran was not present in Illinois
nearly as often as the neighbor believed.
Turning to the statements of the appellant, the Board finds
that her current statements are inconsistent both with her
statements received on and before November 1991, and also
with other certain other evidence of record. The appellant
maintains that she and the veteran engaged in normal sexual
intercourse after January 1975 and held themselves out as
husband and wife. She has submitted a service contract with
a salutation of "Mr." or "Mrs.", photographs, and an
anniversary card. The Board again points out, however, that
in her 1975 statements and November 1991 application for
benefits, the appellant reported that she was divorced from
the veteran. She did not indicate that she had remarried
him. In addition, she did not protest when VA determined
that she was not entitled to an apportioned share of the
veteran's benefits as his spouse. Nor did the veteran, who
was well aware that he could receive additional benefits for
each dependent, attempt after January 1976 to add the
appellant as his dependent.
In addition, the veteran described himself to his VA
physicians both in Chicago and in Michigan as divorced. The
appellant's representative points out that the veteran, in a
January 1976 statement, referred to her as his spouse. Given
that he consistently thereafter referred to himself as
divorced, as did the appellant until after November 1991, the
Board finds the veteran's statement to be of marginal
probative value with respect to whether he believed he and
the appellant were married.
The Board has considered the anniversary card submitted by
the appellant but notes that it is undated, and is therefore
of no more than minimal relevance. The Board has also
considered photographs submitted by the appellant but points
out that they show nothing more than that the veteran would
attend his children's birthdays and graduations, and was
present for the night of a prom, activities the Board does
not find unusual for divorced parents who take an interest in
remaining active in the lives of their children. Finally,
only one of the photographs show just the appellant and the
veteran.
With respect to the service contract, the salutation
addresses "Mr." or "Mrs." and is actually addressed only
to the veteran. The Board notes that despite suggestions by
VA, the appellant has not submitted any records such as tax
returns filed jointly with the veteran or bank statements
showing joint ownership. Lastly, the Board points out that
although the undated certificate from the President honoring
the memory of the veteran is addressed to the appellant as
"Mrs.", it appears the certificate was addressed based on
information she herself, or perhaps one of her children,
provided at some unknown point.
After reviewing the evidence on file, the Board concludes
that the appellant's statements regarding her "marriage" to
the veteran after January 1975 are not credible and lack any
significant probative value. As indicated above, the record
shows that the veteran lived and worked in Michigan since at
least 1976, while the appellant resided in Illinois. She and
the veteran visited each other on occasion, but there is no
indication that the visits were anything more than occasions
for the veteran to interact with his children, despite the
appellant's report of regular sexual intercourse. Statements
by both the veteran and the appellant on and before November
1991, with one exception, refer to their marital status as
divorced. In light of the above, the Board finds that the
veteran and the appellant did not in fact hold themselves out
as husband and wife after the January 1975 divorce judgment,
and that they never attempted to enter into a common law
marriage.
As the Board finds that the veteran and appellant did not
attempt to enter into a common law marriage after the January
1975 divorce judgment, it is irrelevant whether she was aware
of the legal impediment to such a marriage (namely, that
common law marriages were not recognized in Illinois, Indiana
or Michigan). In other words, the evidence shows that there
was no relationship between the appellant and veteran after
January 1975 which reasonably suggests the possibility of a
"deemed valid" marriage under 38 C.F.R. § 3.52. The
arguments of the veteran's representative concerning
continuous cohabitation under 38 C.F.R. § 3.53 are therefore
also irrelevant.
In sum, the record shows that the veteran and appellant were
married in January 1963, but were legally divorced in January
1975, that the appellant was well aware that she was divorced
from the deceased as of January 1975, and that she and the
deceased did not after January 1975 attempt to remarry,
either through a formal ceremony or through the establishment
of a common law marriage. As the appellant therefore was not
married for VA purposes to the deceased at the time of death,
the Board concludes that the preponderance of the evidence is
against the claim for recognition of the appellant as the
surviving spouse of the veteran.
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
The appellant may not be recognized as the veteran's
surviving spouse for the purpose of establishing her
entitlement to VA benefits.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs